Monday, June 21, 2010

Supreme Court Holds that the Public Trust Rules --- No Takings Here

Surfrider Foundation and our pro bono counsel from McDermott Will & Emery celebrate a substantial victory from the recent decision of the United States Supreme Court, in Stop the Beach Renourishment v. Florida Department of Environmental Protection, upholding the constitutionality of the Florida state's beach management program and solidifying public beach access rights. The court unanimously supported the respondent, Florida DEP, and affirmed the lower court ruling of "no takings" of private property without just compensation in this instance. The court ruled 8-0, with the abstention of Justice Steven (who reportedly owns property on the Florida coast), to uphold the Florida Supreme Court's decision. Surfrider Foundation issued an amicus brief in support of public trust beach access rights in this case and to ensure against a ruling in favor of the private property owners. Surfrider recognized that had the ruling been in favor of the private homeowners, the concept of the public beach could have slowly vanished along with the eroding beaches around the country.

The Supreme Court held that Florida Beach and Shore Preservation Act does not deprive the petitioners of the littoral property rights without just compensation, and that petitioners did not suffer a "takings" through the state government's erosion response actions. The court held that Florida state law provides that an avulsive event, or sudden addition of sand, accrues to the state and public trust resources. Justice Antonin Scalia, known for his strict interpretation of U.S. Constitution and state law, writes for the Court:

"In Florida, the State owns in trust for the public the land permanently submerged beneath navigable waters and the foreshore (the land between the low-tide line and the mean high-water line)."

Therefore, anytime there is an avulsive event in Florida (including a beach renourishment project), the homeowner's private right of accretion does not attach. The Florida Supreme Court was affirmed in its decision to treat the right of accretions as "future contingent interest, not a vested property right" that could invoke the Takings Clause of the Fifth Amendments of the U.S. Constitution. The High Court opinion explains that a beachfront landowner would normally benefit by the slow process of accretion through the extension of the property boundary for all land that has accreted (and would, vice versa, lose land for erosion). However, in this case the publicly-funded beach nourishment project will not be considered an extension of private land, but the new sand will be available to the public, as it is considered part of the public trust. Additionally, the right of contact, as a littoral right for the beachfront property owners, does not attach in any exclusive manner for the residents.

Specifically, the "Judicial Takings" doctrine was the subject of debate among the Justices. Even though the majority held that there is no takings in this Florida case under the rules of the Florida Beach Management Program, four Justices stated that there can still be an instance where the "judicial takings" doctrine may apply in the future. The concurring Justices Kennedy and Sotomayor, opined that the Due Process Clause of the Constitution will likely foreclose any opportunity for a court to make the error of judicial takings and will alleviate the need to utilize the doctrine in any judicial decision-making. They also warn that the judicial takings doctrine could be abused and end up giving courts more discretion, rather than constraining the power of the judicial branch.

Although the issue in this case was specifically surrounding the Beach Management Program of the Florida Department of Environmental Protection, Surfrider anticipates that this case will be instructive for future courts and some lawmakers in deciding how to regard the public trust resources of our coastlines. The case serves as affirmation to the state's ability to protect their own natural resources and coastlines. As our shorelines are expected to change more rapidly with increased storms, hurricanes and sea level rise, this case will likely have increasing significance in the coming years.

"Avulsive Event" - "sudden or perceptible loss of or addition to land by the action of the water or a sudden change in the bed of a lake or the course of a stream" as cited in the Sand Key case

More definitions available from the previous post here.

Surfrider Foundation press release located here.

Photo courtesy of Cliff1066

Friday, June 11, 2010

Gushing with Legal Issues

The tragic oil spill in the Gulf of Mexico resulting from the Deepwater Horizon rig blow out on April 20, 2010 has shocked the nation and has already been labeled America's worst environmental disaster. Predictably, where there is a man-made disaster and deep pockets, there will be Plaintiffs. Goodness knows there is evidence of injustice.

There have been dozens of negligence lawsuits and other claims filed by fishermen, shrimpers and the survivors of the eleven oil rig employees who lost their lives in the explosion. In one recent proposed environmental law suit, environmentalists chose to invoke the citizen suit provision of the Clean Water Act to address BP's violations resulting from the Macondo oil well blow out and weeks of subsequent spillage. Gulf Restoration Network, the Louisiana Environmental Action Network and Environment America have given formal notice to BP of the groups' intent to sue. While Surfrider is assessing our involvement, if any, in the litigation surrounding the spill and efforts to mandate strong and effective clean up efforts, our Not the Answer campaign has focused on proactive legislative efforts.

Surfrider Legal's main focus thus far is currently embodied in our legislative work aimed at restoring the 28 year Congressional and Executive moratoria on any new offshore drilling that was allowed to lapse in the fall of 2008. Two bills are currently going through Congress that would help to restore protections against new offshore drilling and safety for our national waters and coasts. Here is a summary of the proposed federal legislation:

H.R. 5213; "West Coast Protection Act of 2010"
On May 5th, Representatives from California, Oregon, and Washington introduced the West Coast Protection Act of 2010 to the House of Representatives, which would prohibit offshore drilling off the coasts of California, Oregon, and Washington. The bill would amend the Outer Continental Shelf Lands Act, which authorizes the Secretary of the Interior to grant offshore oil and gas leases. Under the new Act, the Secretary could not grant new leases for exploration, development, or production of oil and natural gas off the west coast. The bill was referred to the Committee on Natural Resources.

H.R. 5248; "No New Drilling Act of 2010"
Representatives from California, Florida, and New Jersey introduced legislation in the House of Representatives May 6th, which would prohibit further leasing of any area in the United States' outer continental shelf for the exploration, development, or production of oil, gas, and minerals. The bill would eliminate parts of the current Outer Continental Shelf Lands Act, which allow the Secretary of the Interior to create and revise oil and gas leasing programs off U.S. coasts. The bill was referred to the Committee on Natural Resources.